DRIP, the Data Retention and Investigatory Powers Act 2014, has completed its fast track through Parliament and received Royal Assent on 17 July. There were just three days of debate on what is an important piece of legislation in the digital age and one which, arguably, interferes with fundamental rights to privacy.
The Act has two main elements. The first provides the powers to introduce secondary legislation to replace the 2009 Data Retention (EC Directive) Regulations which implemented the 2006 Data Retention Directive in relation to the retention of communications data relating to internet access, internet telephony and internet e-mail as well as mobile and fixed line telephony. In April the European Court of Justice (ECJ) declared the Data Retention Directive invalid on the basis that its interference with individual privacy rights was too wide ranging and went beyond what was strictly necessary to achieve the legitimate objective of the prevention and detection of crime. (See our News item of 30 April for more detail. So, the Government put forward DRIP and has made Regulations under it which came into force on 31 July to ensure that the UK continues to have a mandatory data retention regime. The second element of the Act makes it clear that the interception and communications data provisions in the Regulation of Investigatory Powers Act 2000 have extra-territorial effect. In other words, any company providing communication services to customers in the United Kingdom is obliged to comply with requests for communications data and interception warrants issued by the Secretary of State, irrespective of where they are based.
Civil liberties campaigners have criticised the Act and the Parliamentary “emergency” procedure used to make it law. They argue that it is incompatible with the Human Rights Act 1998 and interferes with individual citizens' privacy rights under Article 8 of the European Convention on Human Rights (ECHR), the right to respect for private and family life, and Articles 7 and 8 of the EU Charter of Fundamental Rights, respect for private and family life and protection of personal data. We wait to see if their challenges are successful.
Andrew Dunlop is a Partner and Lucy Pegler an Associate in our TMT team.